Disregarding Covid Related Absences

Posted in : Supplementary Articles NI on 23 September 2020
Louise McAloon
Worthingtons Solicitors
Issues covered:

Louise: So moving into then absence management. As I said, I think there's a policy decision to be had by management as to whether when it comes to either looking at short-term absence or long-term absence, we do have two options.

Option one is simply disregarding COVID-related absences. Whether that is because of infection or for self-isolating purposes. And so that essentially, we would overlook those absences when we come to considering reviewing absence and considering formal action down the track. And there's certainly depending on the demographic of our absence records and our absence profiles and depending on the resources, frankly available to us, it may well be that for some organisations is the most practical way to deal with it. What I would say is that you're certainly not obliged to do that.

But what are we obliged to do? Well, we very much must bear in mind our section six duty to make reasonable adjustments under the 1985 Disability Discrimination Act so that someone who is disabled is not placed as a disadvantage. So as an absolute minimum, we really would need to ensure that we would disregard any COVID-19-related absences for employees who have disabilities, where they are essentially more likely to be at a disadvantage and disadvantaged and more likely to be at risk of dismissal or dismissal sooner if we take into account to their COVID-19-related absences.

So certainly, it's always it's one of those two approaches that we need to consider as a policy perspective as an organisation. And I suppose that there will not be a one-size-fits-all but I have no doubt that when again in the context of a short-term dismissal or a short-term absence, for example, if an employee has already moved through earlier stages, they may have went into the pandemic on a formal warning or the equivalent of a final written warning. I've absolutely no doubt that an industrial tribunal, they are an industrial jury. They take judicial notice of many things, both in their own world and in an industry generally. And they will very much expect that the employer will exercise its discretion that certainly we would not keep the absolute trigger points that there would be some sort of account taken and whether that's for a greater level of absence or certainly something more than the basic trigger point to allow for the fact that this is a public health issue. It's a public health crisis.

And it's entirely understandable that some employees have elected where they're not able to work from home and that is a logistics issue. It's entirely understandable why some people have decided to place themselves in isolation. So it is something that we're going to have to take into account and certainly go beyond what I would view as our standard trigger points and a form of reasonable adjustment, if you will, whether they're disabled or not.

This article is correct at 23/09/2020

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Louise McAloon
Worthingtons Solicitors

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